Title VII, Section 1981, And The Limits Of Protected Activity

Seyfarth Synopsis: Managing employees engaged in potentially protected activity can be tricky when disciplinary and other normal employment actions might be misconstrued as unlawful retaliation. A recent decision from the United States Court of Appeals for the Eleventh Circuit, however, makes clear that employers may manage employees engaged in protected activity, and that an employee can lose statutory protection when engaging in otherwise protected activity in an unreasonable manner.

Title VII and Section 1981 prohibit employers from retaliating against employees because they have engaged in statutorily protected activity, including – among other things – opposing unlawful practices or filing a charge of discrimination with the EEOC. Employers remain free to take adverse employment actions, including discipline up to and including termination, against employees who have engaged in protected activity but only when there is a legitimate, non-retaliatory reason